Posts

Two Details about DOJ IG’s Leak Investigations, Plural, Including the One into Rudy Giuliani’s Sources

Amid the discussions about the NY office’s rampant leaks to Rudy Giuliani back in 2016, HuffPo confirmed that he was interviewed by two FBI Agents who, he said, were investigating on behalf of the IG.

Giuliani told HuffPost that he spoke with [James] Kallstrom as well as one other former FBI official he would not identify.

But Giuliani said he told the FBI agents who interviewed him that he had neither inside knowledge of the Clinton probe’s status nor advance warning of Comey’s Oct. 28 announcement. He was merely speculating that FBI agents were so upset by Comey’s earlier decision not to charge the Democratic nominee with any crimes that they would “revolt,” either by leaking damaging information about her or by resigning en masse.

“Did I get any leaks from the FBI? I said no,” Giuliani said, adding that the “surprise” that he promised in 2016 was a 20-minute national television ad he was urging Trump to buy to deliver a speech “hitting very hard on the Comey decision.”

[snip]

The agents did not record the interview and did not offer him the opportunity to review their report before they submitted it to their supervisor. One of Giuliani’s private security guards was also present, he said.

“They seemed like straight kids,” he said of the agents.

He added that he was unconcerned that his inquisitors were from the FBI, which conducts criminal investigations, rather than investigators from Horowitz’s office. “They definitely told me they were investigating for the IG,” Giuliani said. “I wasn’t surprised at all.”

I’d like to add two data points from Inspector General Horowitz’s testimony about leaks.

First, while it should have been obvious, this exchange with North Carolina Congressman Mark Walker (particularly Horowitz’ lovely agreement self-correction) made me realize that there are leak investigations, plural.

Horowitz: Looking at the charts here you can see that these are not, generally speaking, one call. So, I would leave it at that. We’re looking at the, that deeper question.

Walker: When you say you’re looking at it, does that mean there may be warrant–it may warrant more investigation for some of those who’ve been players in this situation?

Horowitz: There is — there are, there are active investigations ongoing by our office.

As I said, that should have been clear: the IG Report refers to them as investigations.

Chapter Twelve describes the text messages and instant messages expressing political views we obtained between certain FBI employees involved in the Midyear investigation and provides the employees’ explanations for those messages. It also briefly discusses the use of personal email by several FBI employees, and provides an update on the status of the OIG’s leak investigations.

[snip]

In addition to the significant number of communications between FBI employees and journalists, we identified social interactions between FBI employees and journalists that were, at a minimum, inconsistent with FBI policy and Department ethics rules. For example, we identified instances where FBI employees received tickets to sporting events from journalists, went on golfing outings with media representatives, were treated to drinks and meals after work by reporters, and were the guests of journalists at nonpublic social events. We will separately report on those leak investigations as they are concluded, consistent with the Inspector General (IG) Act, other applicable federal statutes, and OIG policy. [my emphasis]

As a footnote notes, we learned of one result — the Andrew McCabe investigation — when it got referred for criminal investigation.

Between two hearings and three committees, not a single person asked about the methodology of the link clusters I complained about the other day, but I wonder whether they each represent a separate leak investigation?

The far more interesting exchange, however, came yesterday, between Horowitz and Dianne Feinstein. After she laid out Rudy’s claims back in 2016, she asked Horowitz if he was investigating. As he did repeatedly when asked about Rudy, he deferred. But after she asked if such leaks were lawful, and then followed up about whether the investigation was ongoing, he said something interesting.

Horowitz: I’m not in a position at this point to speak to any investigative outcomes.

Feinstein: Do you believe disclosures of this sort, especially during an election are appropriate, are they lawful?

Horowitz: I don’t believe disclosures of this sort are appropriate at any point in time in a criminal investigation. I was a former prosecutor. Worked extensively with FBI Agents, in my prior capacity, and all of us would have thought that was entirely inappropriate.

Feinstein: The report says that you, and I quote, will separately report on those investigations as they are concluded. Does this mean that this leak investigation is ongoing?

Horowitz: Our work remains ongoing and when we can do that consistent with the IG Act, the law, policy, we will do so.

Horowitz suggested that the reason they haven’t reported out the conclusions to these other leak investigations, plural, including the Rudy one is (in part) because it would be inconsistent with the IG Act.

There are specific restrictions on the DOJ IG in the IG Act, but the key one — which permits the Attorney General to halt an investigation for a variety of reasons — itself requires notice to the two committees that were in today’s hearing.

Which leaves the general restrictions on disclosing information in the IG Act. In both the specific DOJ IG language and here, the key restriction is on disclosing information that is part of an ongoing criminal investigation.

(1) Nothing in this section shall be construed to authorize the public disclosure of information which is—
(A) specifically prohibited from disclosure by any other provision of law;
(B) specifically required by Executive order to be protected from disclosure in the interest of national defense or national security or in the conduct of foreign affairs; or
(C) a part of an ongoing criminal investigation.

(2) Notwithstanding paragraph (1)(C), any report under this section may be disclosed to the public in a form which includes information with respect to a part of an ongoing criminal investigation if such information has been included in a public record.

Which would say that, as with the firing of Comey (which Horowitz explained they’ve halted because an ongoing investigation is investigating it), DOJ IG might have been unable to further report the results of its leak investigations because it referred them, plural.

Mind you, that’s not what happened with Andrew McCabe. The DOJ IG completed its investigation, concluded McCabe lied, and then referred him. But it does seem likely that the hold-up on explaining all those link clusters has to do with criminal investigations.

Name the Social Media Author: Lisa Page and Peter Strzok? Or Lindsey Graham and Ted Cruz?

In Lindsey Graham’s questioning of DOJ IG Michale Horowitz in today’s hearing on the IG Report on the investigation of Hillary Clinton, he said, repeatedly, “none of this is normal.” By that, he meant the comments that Peter Strzok and Lisa Page had made about Trump back in 2016. (1:45)

Would you say that this investigation was done by the book?

[snip]

The whole idea that this is normal, folks, there’s nothing here normal. I don’t want you think the FBI does this day in and day out. This is not normal.

He then reviewed a couple of Peter Strzok and Lisa Page’s texts.

Trump’s not ever going to be come president right? right?

No, no he won’t. We’ll stop him.

[snip]

I want to believe the path you threw out in Andy’s office, that there’s no likelihood he’ll become President. It’s like an insurance policy.

[snip]

God Trump is a loathsome human.

Lindsey then repeated that such comments were not normal.

None of this is normal, folks.

Senator Graham, as a former longtime government lawyer as a JAG, should talk to Senator Graham how abnormal such thoughts about Donald Trump are.

“As early as March, these people hated Trump,” Graham said in the hearing, horrified by the thought that someone could come to such conclusions that early.

Former Texas Attorney General Ted Cruz was also alarmed about the mean things that Strzok and Page had said in their social media about Donald Trump. (3:04)

These are difficult days in the Department of Justice and the Federal Bureau of Investigation. Both the Department and the Bureau have long — decades long, in the Department’s case, century’s long traditions of fair and impartial administration of justice. There are thousands of honorable good men and women that work at the Bureau, that work at the Department of Justice, and yet their integrity has been called into question by misconduct and political bias at the highest level.

Cruz went on to quiz Horowitz about the things that Peter Strzok, as lead investigator, had said about Trump.

Is it true that during the period of the investigation in late 2015 and in 2016, when Mr. Strzok was in charge, he used an FBI device to call President [sic] Trump a quote Effing idiot, although I don’t believe he abbreviated it, a loathsome human, and a disaster?

Did he also say multiple times that, quote, Donald Trump cannot be President?

And on August 6, 2016, when FBI Counsel Lisa Page said to Strzok that, quote, maybe you’re meant to stay where you are because you’re meant to protect the country from this menace, meaning President [sic] Trump. Did Mr. Strzok reply that, quote, I can protect our country at many levels?

[snip]

And is it true that there are many similar statements by Mr. Strzok in the report?

[snip]

Does any of that conduct give anyone confidence in the fairness in the enforcement of justice?

These are some of the thoughts that this self-imagined arbiter of integrity had to say about Donald Trump during the period he defined, 2015 to 2016.

These are, of course, different things. Cruz and Lindsey were publicly sharing their thoughts about how unfit Donald Trump was to be President, how outrageous his racism, how unhinged he was. Strzok and Page were engaging in what they foolishly treated as private conversations, but did so on government owned devices at a time when they were conducting politically charged investigations.

I don’t mean to defend the decisions of Strzok and Page with regards to how they shared their thoughts about the unacceptability of Donald Trump.

But I will defend the principle that it is solidly normal to say that Trump is unacceptable.

And there are no better witnesses to that than Lindsey Graham and Ted Cruz.

There’s one other lesson Lindsey teaches us. “I’m glad I don’t text and email,” he also said. If Graham and Cruz’ personal devices were investigated with the scrutiny that Strzok and Page’s were, Strzok and Page might look tame by comparison.

The Most Irresponsible Thing Michael Horowitz Has Done as DOJ IG

As you likely know, I’m a big fan of Michael Horowitz. I think he has routinely discovered key aspects of DOJ and FBI’s behavior that needs improvement. I think he has stood up to FBI pushback reasonably well, if not always successfully. That other professional IGs look to him as their leader reflects the great respect he has earned among his peers.

I’ve already mentioned, in passing, that I think Horowitz’ treatment of the NY field office leaks in the IG Report on the Hillary investigation to be really problematic. The report, and the Andrew McCabe report before it, makes it very clear the rampant leaking from NY motivated a lot of the defensive behavior at FBI and DOJ (not to mention the decision to take an overt act in advance of the election in violation of standing policy). Among other passages, the report cites this very long response (it starts on report page 385 if you want to read the whole thing) from Loretta Lynch, describing how much hatred towards Hillary there was in NY.

I said, but this has become a problem. And he said, and he said to me that it had become clear to him, he didn’t say over the course of what investigation or whatever, he said it’s clear to me that there is a cadre of senior people in New York who have a deep and visceral hatred of Secretary Clinton. And he said it is, it is deep. It’s, and he said, he said it was surprising to him or stunning to him. You know, I didn’t get the impression he was agreeing with it at all, by the way. But he was saying it did exist, and it was hard to manage because these were agents that were very, very senior, or had even had timed out and were staying on, and therefore did not really feel under pressure from headquarters or anything to that effect. And I said, you know, I’m aware of that…. I said, I wasn’t aware it was to this level and this depth that you’re talking about, but I said I’m sad to say that that does not surprise me. And he made a comment about, you know, you understand that. A lot of people don’t understand that. You, you get that issue. I said, I get that issue. I said I’m, I’m just troubled that this issue, meaning the, the New York agent issue and leaks, I am just troubled that this issue has put us where we are today with respect to this laptop.

The report makes clear that the NY leaks played a key role in Comey’s disastrous decision to announce the reopening of the investigation into Hillary.

Comey denied that a fear of leaks influenced his decision to send the October 28 letter to Congress. However, other witnesses told us that a concern about leaks played a role in the decision. As Baker stated, “We were quite confident that…. [I]f we don’t put out a letter, somebody is going to leak it. That definitely was discussed….” Numerous witnesses connected this concern about leaks specifically to NYO and told us that FBI leadership suspected that FBI personnel in NYO were responsible for leaks of information in other matters. Even accepting Comey’s assertion that leaks played no role in his decision, we found that, at a minimum, a fear of leaks influenced the thinking of those who were advising him.

In spite of the magnitude that these leaks had, Horowitz did not seize the FBI phones of the presumed leakers to find out what kind of damning texts they sent among themselves. This is a point made by NYCSouthpaw in a thread the day the report came out. The asymmetric focus on bias against Trump and not against Hillary is a real problem with this report.

I’m sympathetic with the IG’s explanations for why it didn’t find the source of leaks and hopeful by its promise to follow up.

Against this backdrop, and as noted at the time the OIG announced this review, we examined allegations that Department and FBI employees improperly disclosed non-public information. We focused, in particular, on the April/May and October 2016 time periods. We have profound concerns about the volume and extent of unauthorized media contacts by FBI personnel that we have uncovered during our review. Our ability to identify individuals who have improperly disclosed non-public information is often hampered by two significant factors. First, we frequently find that the universe of Department and FBI employees who had access to sensitive information that has been leaked is substantial, often involving dozens, and in some instances, more than 100 people. We recognize that this is a challenging issue, because keeping information too closely held can harm an investigation and the supervision of it. Nevertheless, we think the Department and the FBI need to consider whether there is a better way to appropriately control the dissemination of sensitive information.

Second, although FBI policy strictly limits the employees who are authorized to speak to the media, we found that this policy appeared to be widely ignored during the period we reviewed.221 We identified numerous FBI employees, at all levels of the organization and with no official reason to be in contact with the media, who were nevertheless in frequent contact with reporters. The large number of FBI employees who were in contact with journalists during this time period impacted our ability to identify the sources of leaks. For example, during the periods we reviewed, we identified dozens of FBI employees that had contact with members of the media. Attached to this report as Attachments G and H are link charts that reflects the volume of communications that we identified between FBI employees and media representatives in April/May and October 2016.222

In addition to the significant number of communications between FBI employees and journalists, we identified social interactions between FBI employees and journalists that were, at a minimum, inconsistent with FBI policy and Department ethics rules. For example, we identified instances where FBI employees received tickets to sporting events from journalists, went on golfing outings with media representatives, were treated to drinks and meals after work by reporters, and were the guests of journalists at nonpublic social events. We will separately report on those investigations as they are concluded, consistent with the Inspector General (IG) Act, other applicable federal statutes, and OIG policy. [my emphasis]

Though I would like more details about what the IG discovered when it tried to chase down FBI leaks. We know they grilled McCabe (and discovered the source of one leak that damaged Hillary). Who else did they grill, and how many were in NY?

But here’s the part I find totally irresponsible.

This is, of course, one of the totally decontextualized link analyses the IG includes in the report to substantiate its claim that the FBI leaks like a sieve. By context, this one (of two) probably reflects communications from October, a period we know (from the McCabe report) that DOJ investigated heavily, based in part off an effort to identify Devlin Barrett’s sources and those of other journalists who created a panic right before the election. The IG has gone through the effort to identify (between the two link analyses, assuming no overlap of journalists, though I suspect there may be some) the FBI sources for seven different journalists. At least the two or three journalists with more sources likely recognize they’ve been burned, as might their sources.

But the IG released these two link analyses without telling us information that it surely knows. That is: how many members of these clusters were sitting in NY, and how many in DC? Is the prolific one here Barrett (which is virtually the only way the IG would be able to claim there were too many calls to ID sources for a story we know they examined closely)? If so, then the IG already knows whether it’s true that NY started leaking about both the Weiner emails and the Clinton Foundation investigation with the purpose of pressuring DC to make certain decisions.

That is, having done this analysis, the IG knows the answer to a critical question: did leakers in NY have a significant role in forcing decisions that played a key role the outcome of the election?

If most of these leakers are in NY, then the answer is clear. But the IG didn’t tell us that information.

Worse still, by withholding this information, the IG allowed these two pages to be used (as released) out of context. They were waved around on TV all morning, with the clear suggestion that each of these leaks reflected someone trying to do in Trump. But the reality is possibly (likely even!) precisely the opposite — that a good chunk of these leakers were trying to help Trump.

And they may well have succeeded.

Michael Horowitz owes us at least that context. And I hope Democrats on the Senate Judiciary Committee demand that answer when Michael Horowitz shows up to testify.

Update: One more question I’ve got — how DOJ IG decided to stop the analysis at October, and not at the election. After all, the most damaging fake news story of the election, IMO, was the false leak to Bret Baier, attributed to “two sources inside the FBI,” that Hillary was going to be indicted.

 

The Andrew McCabe Referral Is Unsurprising — and Probably Justified

I’ve been traveling a shit-ton in recent weeks (and still am, in a lovely gorgeous undisclosed location). So it wasn’t until a flight today that I read the DOJ IG Report on Andrew McCabe’s lack of candor about confirming an investigation into the Clinton Foundation. Having finally read it, though, I’m thoroughly unsurprised that DOJ made a criminal referral. Indeed, given the standards FBI holds subjects of investigation to, I think the referral was necessary to avoid the perception that the top FBI brass could get away with behavior that results in criminal charges (for people including George Papadopoulos and Mike Flynn) all the time.

Because boy did Deputy and Acting FBI Director Andrew McCabe use a lot of the tricks that defendants (try, usually unsuccessfully) to use to get out of lying.

Andrew McCabe was investigated for screwing Hillary over

Before I get into the report, let’s make it clear what McCabe is accused of (because the right wing gets this wrong seemingly every time). As part of an investigation into several leaks, McCabe was interviewed repeatedly about this article by Devlin Barrett, specifically this passage.

According to a person familiar with the probes, on Aug. 12, a senior Justice Department official called Mr. McCabe to voice his displeasure at finding that New York FBI agents were still openly pursuing the Clinton Foundation probe during the election season. Mr. McCabe said agents still had the authority to pursue the issue as long as they didn’t use overt methods requiring Justice Department approvals.

The Justice Department official was “very pissed off,” according to one person close to Mr. McCabe, and pressed him to explain why the FBI was still chasing a matter the department considered dormant. Others said the Justice Department was simply trying to make sure FBI agents were following longstanding policy not to make overt investigative moves that could be seen as trying to influence an election. Those rules discourage investigators from making any such moves before a primary or general election, and, at a minimum, checking with anticorruption prosecutors before doing so.

“Are you telling me that I need to shut down a validly predicated investigation?” Mr. McCabe asked, according to people familiar with the conversation. After a pause, the official replied, “Of course not,” these people said.

The passage, coming in a story on the reopening of the investigation into Hillary’s emails, effectively confirmed the separate investigation into the Clinton Foundation.

After denying it in two interviews, he admitted in a third and fourth (though continued to lie about his transparency about the fact) that he had authorized Lisa Page to provide the background and the quote to Barrett.

Effectively, then, McCabe admitted to confirming 10 days before the election that there was a second investigation into Hillary Clinton. DOJ IG (and the FBI witnesses they consulted) concluded that McCabe did so to protect his own reputation, not to reassure the public that Hillary wasn’t above scrutiny. And they dismissed the notion it was a sanctioned confirmation, both because it was not discussed beforehand and carefully messaged, as such confirmations always are, and because it was anonymous.

So for all that Republicans, starting with Donald Trump, want to make this into a real scandal hurting Republicans, it’s the opposite. McCabe is accused of screwing over Hillary to protect his own reputation.

Signs the report was rushed

I find the report itself very credible; it makes a very damning case against McCabe.

But there are a few details of it that deserve mention, because they demonstrate that this report is just part of the larger report that will be released next month.

First, there is no methodology or request for comment from the bureau (though it includes rebuttals from McCabe), which are both standard features on IG Reports. The methodology would be really useful to see because it would provide a few more dates about when a draft was finalized, that might provide more information on how this came to be released early.

Then there’s a redaction in this passage.

Both public reporting and redaction matching suggests it has to be DAD — that is, Peter Strzok. Other references to him are not redacted. For some reason, and I suspect it’s an investigative one, the FBI didn’t want it known that he was party to the decision of forcing McCabe off the email investigation in late October, just days before the WSJ story in question.

That (and one other detail I get to below) suggests the FBI is protecting the details on Strzok and Page that will show up in the larger report.

So this report was, as public reporting has suggested, pulled out of the larger one and packaged up for February release.

That said, I’m not as convinced that served the nefarious purpose of serving up Andrew McCabe to Donald Trump’s voracious firing appetite. Rather, I suspect that’s when they reached the conclusion that McCabe’s behavior reached a level requiring criminal referral. And while I agree the circumstances surrounding McCabe’s firing still stink to high hell, if they had already made the decision to refer McCabe for criminal investigation, the timing, and the necessity of firing him, do make more sense.

This case really is about lying to FBI Agents

In the same way the Republican claim McCabe hurt Trump is bullshit, another public claim — one favored by some Democrats — is that this is simply a he-said he-said between McCabe and Comey.

While one conversation between them — an October 31, 2016 conversation where leaks came up and McCabe did not offer up that he was behind the WSJ passage — is included in the allegations, the other three, far more compelling, allegations include sworn conversations (the latter two taped) with FBI Inspection Division and Inspector General Agents.

And as I said, this is not — as McCabe has spun it — about an authorized confirmation of an investigation. It is true he gave permission for these conversations. But he did not go through the normal process before confirming an investigation (which wouldn’t have been approved but if it had would have resulted in an on-the-record comment). It’s likely McCabe, out of fury, just fucked up. But he did authorize the anonymous leak of stuff that shouldn’t have been released.

I won’t get into the evidence laid out (other than to say that it is convincing). But the report suggests McCabe didn’t come clean to Comey in October, and then in two subsequent interviews tried to create a cover story, only to discover that the investigation into Page and Strzok would reveal his deceit, at which point he tried to clean up his story in a way that wouldn’t put him in legal jeopardy.

Un-fucking-believably, as McCabe tried to get out of the problems he created he used three dodges often used by criminal defendants when complaining about FBI investigative tactics.

McCabe “can’t recall” diversion one

Along the way, McCabe  created two diversions to deflect blame (the IG Report doesn’t focus on this, but I find these actions to be among McCabe’s most reprehensible for the way they exposed others to disciplinary and legal jeopardy).

First, in the wake of the Barrett story that he was a second-hand anonymous source for, McCabe called the heads of the NY and DC office to bitch them out for leaking.

According to NY-ADIC’s contemporaneous October 30 calendar notes and testimony to the OIG, McCabe called NY-ADIC on Sunday, October 30, at 5:11 p.m., to express concerns over leaks from the FBI’s New York Field Office in the October 30 WSJ article. NY-ADIC told the OIG that McCabe was “ticked about leaks” in the article on the CF Investigation, but NY-ADIC “pushed back” a little to note that New York agents were not privy to some of the information in the article.

Also according to NY-ADIC’s calendar notes, as well as his testimony to the OIG, NY-ADIC spoke to EAD and other FBI managers after his call with McCabe to voice concerns “about getting yelled at about this stuff” when he was supposed to be dealing with EAD on Clinton Foundation issues because of his understanding that McCabe had recused himself from the matter.

W-ADIC told the OIG that he received a call from McCabe regarding the October 30 WSJ article and that McCabe admonished him regarding leaks in the article. According to W-ADIC, McCabe told him to “get his house in order.”

McCabe told us that he did not recall calling either NY-ADIC or W-ADIC to reprimand them for leaks in the October 30 WSJ article.

He did so with the NY-ADIC (probably justifiably) after a second Barrett story.

I believe the first of these scoldings served the purpose of creating a paper trail making it look like other offices were responsible for the Barrett leak.

With regards to both of these hypocritical conversations, in which McCabe pulled rank to yell at people for doing what he had himself done, he claimed afterwards not to recall the conversations in question (and bizarrely for a lifetime FBI Agent, didn’t take the notes that his counterparties did).

I think the first one is of particular concern, as by blaming the field offices, McCabe was deflecting from his own role. And like a long line of high level officials before him, he got away with it by claiming he didn’t recall these conversations.

McCabe blames diversion two on the perennial two-Agent, no recording complaint

McCabe also created a diversion in his first interview, with the Inspection Division (which, because of rank, he knew could not investigate him personally). He told them, falsely, that he had told a bunch of other people about the conversation described in the WSJ, leading INSD to believe there could be any number of suspects.

INSD-SSA1 further told the OIG that McCabe stated during the interview that he had related the account of the August 12 call to others numerous times, leaving INSD-SSA1 with the impression that INSD-SSA1 would “not get anywhere by asking” McCabe how many people could have known about what appeared to be a private conversation between him and PADAG. INSD-SSA1 told us that he didn’t need to take many notes during the interview because, at that point, he viewed McCabe as “the victim” of the leak and McCabe had told the INSD agents that he did not know how this happened. INSD-SSA1 also told us that the whole interaction was short, maybe 5 to 7 minutes, and flowing because McCabe was seemingly the victim and claimed he did not know who did it. INSD-SSA1 said that McCabe’s information could be summarized in one paragraph in his draft statement.

This led them to give up their investigation, for a period. When they sent him their version of the statements he had made to get him to sign and swear to them, he just blew off the request (he was Acting Director at this point, so he admittedly had tons of other things to do, but also real reason to believe his seniority would help him avoid any trouble for his actions).

When McCabe ultimately came clean about his role in this affair, he tried to suggest that the INSD version of what happened was not accurate (as defendants sometimes do, often for good reason, when an FBI 302 leaves out key details). Remarkably though, this guy who must have seen this ploy hundreds of times in his life and knew that FBI Agents always move in twos, suggested that the specific discussion involved just one of the Agents present.

McCabe also asserted that the May 9 meeting concerned an unrelated leak matter and that the discussion about the October 30 article occurred near the end of the meeting when “one of the people on that team pulled me aside and asked me a question about the Wall Street Journal article.” He elaborated by stating that as the INSD agents were “walking out of my office into the hallway, and [INSD Section Chief] kind of grabbed me by the arm and said, hey, let me ask you about something else.” McCabe said that he and INSD-Section Chief were still in his office, he thought standing, during the conversation but that the other two INSD agents (McCabe recalled there being three INSD agents present that day, not two) were outside his office. He said INSD-Section Chief showed him the October 30 WSJ article at that time and asked him “a question or two about it. And that was it. It was a very quick exchange.”

If it had indeed happened this way, it would have made the conversation other than investigative, and might have gotten him off the hook for lying.

Except that SSA-1 took notes, so was obviously present, and INSD made McCabe initial the WSJ article confirming he had read it.

Nevertheless, this is, ultimately, the same complaint criminal defendants make all the time about the FBI’s approach to interviews.

McCabe mounts a Miranda defense

Perhaps most un-fucking-believably, McCabe mounted a Miranda defense to excuse the fact that he lied when he was first asked about the Page-Strzok texts. Effectively, he said that he had an explicit agreement that OIG would not ask him any questions that might put him in legal jeopardy.

In response to review a draft of this report, counsel for McCabe argued that, in asking McCabe about the October 27-30 texts between Special Counsel and DAD regarding the WSJ article, the OIG engaged in improper and unethical conduct, and violated an allegedly explicit agreement with McCabe that when he was interviewed by the OIG on July 28 he would not be questioned outside the presence of counsel with respect to matters for which he was being investigated. McCabe provides no evidence in support of his claim, and based on the OIG’s review of the available evidence, including the transcript of McCabe’s recorded OIG interview on July 28 and the OIG’s contemporaneous notes, as described below, McCabe’s claim is contradicted by the investigative record.

As an initial matter, at the time of the July 28 interview, McCabe was not a subject of an OIG investigation of disclosures in the October 30 WSJ article, nor did the OIG suspect him of having been the source of an unauthorized disclosure of non-public information related to that article. The OIG did not open its investigation of McCabe concerning the WSJ article until August 31, after being informed by INSD that McCabe had provided INSD agents with information on August 18, 2017, that contradicted the information that he had provided to INSD agents on May 9.

Second, the OIG has no record that McCabe stated in advance of the July 28 interview that he was represented by counsel. Moreover, the recording of the July 28 interview shows that at no time did McCabe give any indication that he was represented by counsel. The transcript of the interview shows that the OIG informed McCabe, who has a law degree, that the interview was about “issues raised by the text messages” between Special Counsel and DAD, and that the OIG would not be asking McCabe questions about “other issues related to your recusal in the McAulliffe investigation . . . or any issues related to that.” McCabe responded “Okay” and did not articulate or request any further limitations on the questions he would answer. The OIG added that “This is a voluntary interview. What that means is that if you don’t want to answer a question, that’s fully within your rights.” That “will not be held against you . . . .” The recording of McCabe’s interview further demonstrates that the OIG was entirely solicitous of McCabe’s requests not to respond to certain questions. Towards the end of the interview, before beginning an area of questioning unrelated to Special Counsel/DAD texts or the WSJ article, the OIG prefaced his question to McCabe by stating “if you feel this is connected to the things that are making you uncomfortable, will you let me know?” McCabe responded, “Yes. Yeah, you can ask, I’ll let you . . . If I don’t feel comfortable going forward, I’ll let you know.” At a later point in the interview, after answering a number of questions unrelated to Special Counsel/DAD texts, McCabe expressed a preference for not answering further questions, and the OIG did not ask further questions on the topic. [my emphasis]

I mean, sure, OIG blew that excuse out of the water (and the rebuttal continued with further evidence this claim was bullshit). But when I was reading it I kept thinking “how many fucking times have you been the Agent giving the uneducated interviewee even less opportunity to invoke Miranda! Yet you fucked this up!?!?!”

Did McCabe coordinate his story with Page?

As noted, McCabe’s true undoing came when, in the course of the investigation into the treatment of Hillary, OIG discovered the Page-Strzok texts. McCabe was asked about them in the context of the Page-Strzok contacts, and realized (but lied in a sworn, recorded interview) that the texts disproved all his stories. That led him to correct his testimony to INSD, which then referred it to OIG so someone of the rank that could investigate McCabe could interview him.

Along the way, though, McCabe and Page had a conversation — one she subsequently copped to, but he did not.

McCabe denied that being shown the text messages on July 28 that indicated Special Counsel had spoken to Barrett caused him to change his account in order to protect Special Counsel. McCabe told the OIG that this “thinking process” was done “on my own” without talking to any FBI employees or reviewing past e-mails or text messages. He stated that he did not discuss the Devlin texts with Special Counsel after the July 28 interview. While Special Counsel told the OIG that following McCabe’s July 28 OIG interview, she and McCabe discussed her text messages, she said that McCabe did not discuss his OIG testimony about the WSJ article, or the WSJ article itself, at that time. Special Counsel stated that she and McCabe did not discuss “getting their stories straight” with respect to the WSJ article. Special Counsel told the OIG that the last time she spoke with McCabe about the WSJ article was in approximately October 2016 (when the article was published).

This was not included among the key lack of candor charges, but I suspect the prosecutor will test the veracity of this current operative story.

I get that the way McCabe was fired stinks. I get that McCabe may well be serving as cover for the Mueller interview.

But neither of those observations changes the fact that one of the most senior FBI executives tried all the tricks a lifetime of pursuing criminals would have familiarized him with, and he still blew it.

And because the FBI relies on false statements charges to conduct its interviews, I think the criminal referral is necessary.

On McCabe’s Firing

Update: 8/28/19: I just re-read this amid discussion that Andrew McCabe may be fired. Much of this I stand by. I was right about the import of Mike Flynn already pleading guilty, I stand by my comments about Michael Horowitz and think the IG Report is damning, though in his lawsuit, McCabe credibly argues it was no developed in the normal fashion. I was right that McCabe would not be a big witness in any obstruction investigation; I was wrong that Comey wouldn’t be. But I want to admit that obstruction did end up being what Mueller effectively issued an impeachment referral for. That said, there was obstruction in both the Stone and Manafort threads of any interactions with Russia. 

I’m going to refrain from making any conclusions about Andy McCabe’s firing until we have the Inspector General Report that underlies it. For now (update: I’ve now cleaned this up post-Yoga class), keep the following details in mind:

Michael Horowitz is a very good Inspector General

The allegations that McCabe lacked candor in discussions about his communications with Devlin Barrett all arise out of an investigation Democrats demanded in response to FBI’s treatment of the investigation into Hillary Clinton. It is being led by DOJ’s Inspector General, Michael Horowitz. Horowitz was nominated by Barack Obama and confirmed while Democrats still had the majority, in 2012.

I’ve never seen anything in Horowitz’ work that suggests he is influenced by politics, though he has shown an ability to protect his own department’s authority, in part by cultivating Congress. Of significant note, he fought with FBI to get the information his investigators needed to do the job, but was thwarted, extending into Jim Comey’s tenure (as I laid out in a fucking prescient post written on November 3, 2016).

As I’ve long covered, in 2010, the FBI started balking at the Inspector General’s proper investigative demands. Among other things, the FBI refused to provide information on grand jury investigations unless some top official in FBI said that it would help the FBI if the IG obtained it. In addition, the FBI (and DEA) have responded to requests very selectively, pulling investigations they don’t want to be reviewed. In 2014, the IG asked OLC for a memo on whether it should be able to get the information it needs to do its job. Last year, OLC basically responded, Nope, can’t have the stuff you need to exercise proper oversight of the FBI.

DOJ’s Inspector General, Michael Horowitz, has been trying for some time to get Congress to affirmatively authorize his office (and IGs generally, because the problem exists at other agencies) to receive the information he needs to do his job. But thus far — probably because Jim Comey used to be known as the world’s biggest Boy Scout — Congress has failed to do so.

I care about how FBI’s misconduct affects the election (thus far, polling suggests it hasn’t done so, though polls are getting closer as Republican Gary Johnson supporters move back to supporting the GOP nominee, as almost always happens with third party candidates). But I care even more about how fucked up the FBI is. Even if Comey is ousted, I can’t think of a likely candidate that could actually fix the problems at FBI. One of the few entities that I think might be able to do something about the stench at FBI is the IG.

Except the FBI has spent 6 years making sure the IG can’t fully review its conduct.

So while I don’t think he’d be motivated by politics, he has had a running fight with top FBI officials about their willingness to subject FBI to scrutiny for the entirety of the Comey tenure.

McCabe has suggested that the investigation into him was “accelerated” only after he testified to the House Intelligence Committee that he would corroborate Jim Comey’s version of his firing.

I am being singled out and treated this way because of the role I played, the actions I took, and the events I witnessed in the aftermath of the firing of James Comey. The release of this report was accelerated only after my testimony to the House Intelligence Committee revealed that I would corroborate former Director Comey’s accounts of his discussions with the President. The OIG’s focus on me and this report became a part of an unprecedented effort by the Administration, driven by the President himself, to remove me from my position, destroy my reputation, and possibly strip me of a pension that I worked 21 years to earn. The accelerated release of the report, and the punitive actions taken in response, make sense only when viewed through this lens.

I’m not sure this timeline bears out (the investigation was supposed to be done last year, but actually got extended into this year). The statement stops short of saying that he was targeted because his testimony — presumably already delivered to Robert Mueller by the time of his HPSCI testimony — corroborated Comey’s.

What we’ve seen of the other personnel moves as a result of this investigation — the reassignment of Peter Strzok and Lisa Page for texts that really did raise conflict issues (to say nothing of operational security problems), and the reassignment of James Baker — seem reasonable. McCabe’s firing was reviewed by a whole bunch of people who have been around DOJ a long time.

So it’s possible the underlying claim has merit. It’s also possible that McCabe is getting the same punishment that a line agent would get if he did not answer the IG honestly.

Trump’s comments matter

Obviously, all that cannot be taken out of context of Trump’s own statements and Jeff Sessions’ efforts to keep his job.

We will get these details in upcoming days, and almost all the details will come from people who’ve got a big stake in the process.

Michael Bromwich — McCabe’s lawyer — says they didn’t get a review of the allegations against McCabe until very recently, and were still trying to contest the firing two days ago (as was publicly reported). I find his claim that this was “cleaved off” from the larger investigation unconvincing: so were Strzok and Page, but that was done to preserve the integrity of the Mueller investigation, and Chris Wray had said publicly that he wanted to act on problems as they found them. Bromwich curiously is not saying that McCabe’s firing violates any agreement McCabe made when he took leave to await retirement.

Undoubtedly, Jeff Sessions did this in the most cowardly way possible. While I think it’s likely, I’m not 100% convinced that the timing was anything other than trying to make a real decision rather than let the retirement make it.

There’s no evidence, yet, that McCabe will lose all his pension

It has been said for over a month that McCabe was just waiting out his birthday so he could “get” his pension. That was so he could start drawing on it immediately. Josh Gerstein laid out the best thing I’ve seen on the implications (as well as what limited legal recourse McCabe has).

The financial stakes for McCabe could be significant. If he had made it to his 50th birthday on Sunday while still in federal service, he would have been eligible to begin drawing a full pension immediately under provisions that apply to federal law enforcement officers, said Kimberly Berry, a lawyer in Arlington, Virginia, who specializes in federal retirement issues.

Berry disputed reports, however, that McCabe would lose his pension altogether.

“He doesn’t lose his retirement,” she said. “It’s not all thrown out in the garbage.“

Even after his dismissal, McCabe will probably be eligible to begin collecting his pension at about age 57, although he would likely lose access to federal health coverage and would probably get a smaller pension than if he stayed on the federal payroll, experts said.

There have been claims McCabe could get hired by a member of Congress for a week so he can start drawing on it. But I’ve heard the finances aren’t even the issue, it’s the principle, which if you want to be a martyr, being fired works better.

This will have a far smaller impact on the Mueller probe than Comey-McCabe loyalists and John Dowd lay out

McCabe and others have suggested that there has been a successful effort to retaliate against Comey’s three corroborating witnesses, though that is least convincing with regards to Jim Rybicki, who was replaced as happens as a matter of course every time a new FBI Director comes in.

But the Comey-McCabe loyalists make far too much of their role in the Mueller probe, making themselves the central actors in the drama. Yes, if their credibility is hurt it does do some damage to any obstruction charges against Trump, which, as I keep repeating, will not be the primary thrust of any charges against Trump. Mueller is investigating Trump for a conspiracy with Russians; the obstruction is just the act that led to his appointment as Special Counsel and with that, a much more thorough investigation. Contrary to what you’re hearing, little we’ve seen thus far is fruit of the decisions Comey and his people made. While all were involved in the decision to charge Mike Flynn, he has already pled guilty and started spilling his guts to Mueller. There’s no reason to believe McCabe or Comey are direct witnesses in the conspiracy charges that will be filed against people close to Trump, if not against Trump himself.

For all those reasons, John Dowd’s claim that McCabe’s firing should end the investigation is equally unavailing.

I pray that Acting Attorney General Rosenstein will follow the brilliant and courageous example of the FBI Office of Professional Responsibility and Attorney General Jeff Sessions and bring an end to alleged Russia Collusion investigation manufactured by McCabe’s boss James Comey based upon a fraudulent and corrupt Dossier.

I mean, if this really is Dowd’s impression of why his client is being investigated, I almost feel sorry for Trump.

But the truth is the dossier has always been a distraction. The obstruction charge was probably used to distract Trump (and his NYT stenographers) while Mueller’s team collected the far more serious evidence on the conspiracy charges, though events of this week may well add to the conspiracy charges. And Comey didn’t manufacture any investigation; if anything, his people were not aggressive enough in the months he oversaw the investigation, particularly as it pertains to George Papadopoulos.

So if Dowd thinks McCabe’s firing will affect the core of the evidence Mueller has already developed (and, I suspect, started hanging on a sealed magnet indictment), he is likely to be very disappointed.

Regardless of the merits of the McCabe firing, it (and the related shit storm) may give Rosenstein and Mueller more time to work. It’s not clear they need that much more time to put together the conspiracy charges that are sitting right beneath the surface.

Finally — and I’m about to do a post on this — the far more important news from yesterday is that Facebook is cutting off Cambridge Analytica for violating its agreements about data use. That may well lead to some far more important changes, changes that Trump has less ability to politicize.

DOJ Still Claiming Its Kid Glove Oversight of Prosecutors Is Adequate

During the uproar over Jim Comey’s role in the Hillary email investigation, a lot of commentators figured it’d all come out in an Inspector General report. But as I noted, DOJ exempts its lawyers from normal kind of oversight, subjecting them instead to Office of Professional Responsibility investigations without statutory independence. The problem has been debated at least since 2007, but Congress squelched efforts to change it in 2008. That, helped by the interference of the now-deceased David Margolis, was how John Yoo got off after writing shoddy memos authorizing torture.

Last month, DOJ’s IG released its yearly review of top management challenges. And, as Michael Horowitz’s predecessor Glenn Fine had done before him, he made a bid for being able to review the conduct of DOJ’s lawyers. The report argues that the oversight for lawyers should be the same as it is for agents.

The OIG, however, does not have authority to investigate allegations of misconduct against Department attorneys when the allegations are related to their work as lawyers. Those allegations fall under the exclusive jurisdiction of the Department’s Office of Professional Responsibility. The OIG has long believed that there is no principled basis for this continued limitation on our jurisdiction, and no reason to treat the investigation of misconduct by prosecutors differently than misconduct by agents. Under the current system, misconduct allegations against agents are handled by a statutorily independent OIG, while misconduct allegations against prosecutors are handled by a Department component that lacks statutory independence and whose leadership is both appointed by and removable by the Department’s leadership.

As Horowitz has done with IG statutory independence with respect to accessing evidence, the report focuses on bills to address the problem.

Bipartisan bills pending in both the U.S. House of Representatives and the U.S. Senate would remove this limitation on the OIG’s jurisdiction. The legislation, as now proposed, would allow the OIG to investigate these important matters, where appropriate, with the independence and transparency that is the touchstone of all of the OIG’s work, thereby providing the public with confidence regarding the handling of these matters. The Department’s attorneys should be held to the same standards of oversight as other Department components, and the OIG should have oversight over all Department employees, just like every other OIG.

Most interesting, however, is the way that DOJ claimed this long-established problem doesn’t exist. Unbelievably, “the Department” claimed that OPR has the same independence as OIG.

In response to a draft of this report, the Department questioned our position that the OIG should have the same authority as every other federal Inspector General to review allegations of misconduct by Department attorneys in connection with their work as lawyers. Among other things, the Department took issue with our description of OPR’s relative lack of independence as compared to the OIG by asserting that (1) OPR’s Counsel “remains unchanged with successive Attorneys General and presidential administrations,” (2) the OIG has not “criticized OPR’s work, the thoroughness of its investigations, or the soundness of its findings,” and (3) the OIG has not “identified a single OPR investigation that failed to appropriately hold accountable . . . Department attorneys.”

The report calls bullshit on the claim that the department hasn’t replaced OPR officials, noting that Holder did replace OPR Counsel Marshall Jarret in 2009 in the midst of the Ted Stevens scandal (Jarret was also backing off promises he would make the results of the Yoo investigation with Congress).

On the first point, the same could be said of supervisory attorneys throughout the Department and, in fact, contrary to the Department’s claim with regard to OPR, in April 2009, less than 4 months after the last change in presidential administrations, the new Attorney General replaced the OPR Counsel without any public explanation.

Holder actually replaced the OPR Counsel one more time, in 2011.

The report goes on to note that we can’t assess OPR’s work because, unlike most IG Reports, it is not public.

On the second and third points, neither the OIG nor the public are in a position to fully assess the thoroughness and soundness of OPR’s work precisely because OPR does not disclose sufficient information to allow for such an assessment.

The report then lists off a bunch of people — including the judge in the Ted Stevens case, Emmet Sullivan — who have complained about OPR’s work.

However, federal judges, the American Bar Association, and the Project on Government Oversight (POGO) have all questioned the level of independence, transparency, and accountability of OPR. See, e.g., Order by Hon. Emmet G. Sullivan Appointing Henry F. Schuelke Special Counsel in United States v. Stevens, No. 08-cr-231 (Apr. 7, 2009), p. 46. (“the events and allegations in this case are too serious and too numerous to be left to an internal investigation that has no outside accountability”) ; “Criminal Law 2.0,” by Hon. Alex Kozinski, 44 Geo. L.J. Ann. Rev. Crim. Proc. iii (2015); ABA Recommendation urging the Department of Justice to release “as much information regarding individual investigations as possible,” Aug. 9-10, 2010, available here; “Hundreds of Justice Department Attorneys Violated Professional Rules, Laws, or Ethical Standards: Administration Won’t Name Offending Prosecutors,” Report by POGO, March 13, 2014, available here.

The report ends with a reassertion that the Inspector General Act requires far more of inspectors general than OPR provides.

Moreover, whatever the soundness of OPR’s work, the Department’s efforts to equate OPR’s independence and transparency with that of the OIG flies directly in the face of the Inspector General Act, which fundamentally exists to create entities with an enhanced degree of independence and transparency so that they can credibly conduct investigations and reviews where there would be an expectation that more independent and transparent oversight is required. That is the very reason why Attorney General Ashcroft expanded the OIG’s jurisdiction in 2001 to include the FBI and the DEA, and there simply is no reason why Department attorneys continue to be protected from the possibility that their conduct may warrant independent review by the OIG in appropriate cases.

Frankly, there is evidence that OPR’s investigation has been inadequate, starting with both the Yoo and the Stevens investigations.

But there have also been a slew of cases of prosecutors withholding evidence from defendants, cases that ought to merit some real review (to say nothing of the Clinton email case). For example, just this week, Ross Ulbricht’s lawyers revealed they had discovered evidence of a third corrupt agent, the evidence of which had been withheld from the defense team.

There’s no hint of why Horowitz is making this point now. But there sure are a number of cases that might elicit actual independent review.

Now Would Be a Good Time to Restore Statutory Authority of DOJ’s Inspector General

Judd Legum reports that the FBI’s Inspection Division is launching an investigation into why its FBI Records Vault Twitter bot launched into action the other day, resulting in the re-release of FOIAed files on Bill Clinton’s pardon of Marc Rich.

Candice Will, Assistant Director for the FBI’s Office of Professional Responsibility, said she was referring the matter to the FBI’s Inspection Division for an “investigation.” Upon completion of the investigation, the Office of Professional Responsibility will be referred back to the Office of Professional Responsibility for “adjudication.”

Federal law and FBI policy prohibit employees from using the power of the department to attempt to influence elections.

Will was responding to a complaint from Jonathan Hutson, a former investigative reporter who now works in communication in Washington, DC. She did not respond to requests, via phone and email, for further comment.

I’m happy the FBI is conducting this investigation, but this story is the inevitable result of the FBI responding appropriately to a complaint submitted by a media consultant, not any indication anyone at the FBI takes its own misconduct seriously.

Plus, the Inspection Division and the Office of Professional Responsibility don’t have statutory independence from the rest of the FBI, which means their investigation (and particularly OPR’s adjudication) can be influenced by FBI executives.

The entity that should be conducting an investigation into the FBI’s misconduct relating to this election is the Inspector General, which does have the independence to really assess who, if anyone screwed up.

There’s just one problem with that. As I’ve long covered, in 2010, the FBI started balking at the Inspector General’s proper investigative demands. Among other things, the FBI refused to provide information on grand jury investigations unless some top official in FBI said that it would help the FBI if the IG obtained it. In addition, the FBI (and DEA) have responded to requests very selectively, pulling investigations they don’t want to be reviewed. In 2014, the IG asked OLC for a memo on whether it should be able to get the information it needs to do its job. Last year, OLC basically responded, Nope, can’t have the stuff you need to exercise proper oversight of the FBI.

DOJ’s Inspector General, Michael Horowitz, has been trying for some time to get Congress to affirmatively authorize his office (and IGs generally, because the problem exists at other agencies) to receive the information he needs to do his job. But thus far — probably because Jim Comey used to be known as the world’s biggest Boy Scout — Congress has failed to do so.

I care about how FBI’s misconduct affects the election (thus far, polling suggests it hasn’t done so, though polls are getting closer as Republican Gary Johnson supporters move back to supporting the GOP nominee, as almost always happens with third party candidates). But I care even more about how fucked up the FBI is. Even if Comey is ousted, I can’t think of a likely candidate that could actually fix the problems at FBI. One of the few entities that I think might be able to do something about the stench at FBI is the IG.

Except the FBI has spent 6 years making sure the IG can’t fully review its conduct.

It’s time to fix that.

FBI’s Surveillance Arbitrage, First Amendment Edition

While I was cycling around Provence without a care in the world last week, DOJ’s Inspector General released an IG Report mandated by the USA Freedom Act. It reports on the use of Section 215 from 2012 to 2014 (which means NSA and FBI have successfully avoided any review of their 215 orders from 2010 and 2011, not to mention any review of CIA’s use of the provision). The key takeaway is that the application process to get Section 215 orders is very time consuming — over 100 days on average. Which is probably why Republican Senators have been trying to permit FBI to obtain Electronic Communications Transaction Records with just a National Security Letter since the report was released to Congress in June.

The report also noted a sharp drop-off in the use of 215 orders in recent years, which I’ve been tracking here.

Those two factors are useful background for some other details in the report, however. First, DOJ and FBI interviewees offered many explanations for the decline in Section 215 use, one of which is Edward Snowden, but two more credible ones of which are the use of other authorities to get the same information, Section 702 or grand jury subpoenas.

NSD and FBI personnel attributed the subsequent decline between 2013 and 2015 to several factors, including the stigma attached to the use of Section 215 authority following the Snowden revelations, increased use of Section 702 of the FISA Amendments Act, providers’ resistance to business records orders, agents’ frustrations with the lack of timeliness and level of oversight in the business records process, and agents’ increasing use of criminal legal process instead of FISA authority in counterterrorism and cyber investigations.

They key point, though, is for most uses, there are other ways to get the same information. There is a limit to that, though. Apparently, grand jury subpoenas are only possible for counterterrorism and cybersecurity investigations, not counterintelligence ones.

When asked about this disparity, agents told us that business records orders frequently are the only option available in counterintelligence investigations given the nature and classification of the information involved. By contrast, agents handling counterterrorism and cyber investigations can in some instances open a parallel criminal investigation and use the grand jury process to obtain the same information more quickly and with less oversight than a business records order.

That’s why I’m so interested in a discussion of the applications that got filed — in counterterrorism cases — but either not submitted or withdrawn from the FISC in this period.

screen-shot-2016-10-07-at-10-51-46-am

Remember, the way the government and FISC avoid rejected applications is by not submitting or withdrawing things that it is clear the FISC won’t approve. What this redacted section effectively says is that at least “several” requests based on a target’s statements about jihad were withdrawn, apparently in the wake of a February 2013 order from John Bates on what constitutes targeting for First Amendment reasons.

We’ve seen a heavily redacted version of that opinion. As I laid out here, it’s a classic John Bates opinion: it hems and haws about Executive Branch behavior, but then approves the behavior in question (at least in this case, Bates didn’t approve an expansion of the questionable behavior, as he did in 2010 with the Internet dragnet).

Effectively Bates appears to have objected to the use of a target’s language (perhaps, support for jihad without endorsement of specific threats) in obtaining a Section 215 order, but then pointed to other peoples’ behavior in finding that the order didn’t stem exclusively from First Amendment protected activities.

And the IG Report says that, apparently in the wake of that wishy-washy opinion, DOJ decided to withdraw several applications based on stated support for jihad.

Remember, in 2006, the FBI withdrew two attempts at a 215 order because of FISC’s First Amendment concerns only to get the same information with NSLs. (See page 68ff) Congress made a particularly big stink about it, because the FBI was acting on its own in spite of FISC’s disapproval.

This feels similar. That is, given that FBI was already moving its Section 215 orders to grand jury subpoenas because they’re easier to get and undergo less oversight, it sure seems likely these requests reappeared as such. Unlike the earlier IG report that confirmed FBI arbitraged surveillance authorities to get around First Amendment protections, this report appears not to have pursued the issue (as I understand it, the declassification of this report was handled exclusively through redactions).

They did, however, ask why DOJ doesn’t track applications that are withdrawn, to avoid the appearance that the FISC is a rubber stamp. DOJ’s answer was rather unpersuasive.

The FISA Court did not deny any business records applications between 2012 and 2014. When asked why applications withdrawn after submission of a read copy to the FISA Court were not reported to Congress, potentially creating the inadvertent impression that the FISA Court is a “rubber stamp,” NSD supervisors told us that the Department includes only business records applications formally submitted to the FISA Court and denied or withdrawn, not those filed in “read copy” and subsequently withdrawn. 41 The NSD supervisors acknowledged that excluding applications withdrawn after the FISA Court indicates that it will not sign an order might lead to misunderstandings about the FISA Court’s willingness to question applications, but the supervisors noted that NSD and the FISA Court have talked about the “read” process publicly to address concerns about this. 42 In comments provided to the OIG after reviewing a draft of this report, NSD stated that it is currently considering whether to revise the methodology for counting withdrawn applications.

My guess is they want to avoid any records of withdrawn applications for those times when they do use a grand jury subpoena to obtain stuff that FISC made known it wouldn’t approve. That detail might have to be disclosed to defendants, after all. Here, there’s less paperwork.

It all seems to support a theory that the FBI continues to arbitrage surveillance authorities (as they, by their own admission, do with location tracking). With location tracking, there’s nothing patently illegal about that. But with First Amendment protections, that sure seems dubious.

FBI’s Open NSL Requests

DOJ’s Inspector General just released a report of all the recommendations it made prior to September 15, 2015 that are not yet closed. As it explained in the release, the IG compiled the report in response to a congressional request, but they’ve posted (and will continue to post, every 6 months) the report for our benefit as well.

Specifically, we have posted a report listing all recommendations from OIG audits, evaluations, and reviews that we had not closed as of September 30, 2015.  As you will see, most of the recommendations show a status of “resolved,” which indicates that the Department of Justice has agreed with our recommendation, but we have not yet concluded that they have fully implemented it.

As that release made clear, most of the recommendations that have not yet been closed are not open, but resolved, which means DOJ has agreed with the IG’s recommendation but has not fully implemented a fix for that recommendation.

Which leaves the “open” recommendations, which might include recommendations DOJ hasn’t agreed to address or hasn’t told the IG how they’ll address. There are 20 open recommendations in the report, most of which date to 2014. That’s largely because every single one of the 10 recommendations made in the 2014 report on National Security Letters remains open. Here are some of my posts on that report (one, two, three, four, five), but the recommendations pertain to not ingesting out-of-scope information, counting the NSL’s accurately, and maintaining paperwork so as to be able to track NSLs. [Update: as the update below notes, the FBI response to the released report claimed it was responding, in whole or in part, to all 10 recommendations, which means the “open” category here means that FBI has not had time to go back and certify that FBI has done what it said.]

Three of the other still-open recommendations pertain to hiring; they pertain to nepotism, applicants for the civil rights division wanting to enforce civil rights laws (!), and the use of political tests for positions hiring career attorneys (this was the Monica Goodling report). Another still open recommendation suggests DOJ should document why US Attorneys book hotels that are outside cost limits (this pertains, ironically, to Chris Christie’s travel while US Attorney).

The remaining 2 recommendations, both of which date to 2010, are of particular interest.

1/19/2010: A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records

The OIG recommends that the FBI should issue guidance specifically directing FBI personnel that they may not use the practices known as hot number [classified and redacted] to obtain calling activity information from electronic communications service providers.

The first pertains to the IG Report on exigent letters. The report described (starting on PDF 94) how FBI contracted with two providers for “hot number” services that would let them alert the FBI when certain numbers were being used. FBI first contracted for the service with MCI or Verizon, not AT&T (as happened with most tech novelties in this program). The newly released version of the report make it clear that redactions are redacted for b1 (classification), b4 (trade secrets), b7A (enforcement proceedings), and b7E (law enforcement technique). At one point, then General Counsel now lifetime appointed judge Valerie Caproni said the practice did not require Pen Registers.

I find this practice — and FBI’s longstanding unwillingness to forswear it — interesting for two reasons. First, most references to the practice follow “hot number” by a short redaction.

Screen Shot 2016-01-21 at 2.02.30 PM

That suggests “hot number” may just be a partial name. Given that this section makes it clear this was often used with fugitives — just as Stingrays are often most often used — I wonder whether this involved “number” and “site.” That’s especially true since Company C (again, MCI or Verizon) also tracked whether calls were being made from a particular area code or [redacted], suggesting some location tracking function.

I’m also interested in this because “hot numbers” tracks the unauthorized “alert” function the NSA was using with the phone dragnet up until 2009. As you recall, NSA analysts would get an alert if any of thousands of phone numbers got used in a given day, none of which it counted as a contact-chaining session.

In other words, this practice might be related to one or both of these things. And 6 years later, the FBI doesn’t want to forswear the practice.

9/20/2010, A Review of the FBI’s Investigations of Certain Domestic Advocacy Groups

The OIG recommends that the FBI seek to ensure that it is able to identify and document the source of facts provided to Congress through testimony and correspondence, and to the public.

This report (see one of my posts on it) reviewed why the FBI had investigated a bunch of peace and other advocacy groups as international terrorist groups dating back to 2004. ACLU had FOIAed some documents on investigations into Pittsburgh’s peace community. In response, Patrick Leahy started asking for answers, which led to obvious obfuscation from the FBI. And as I noted, even the normally respectable Glenn Fine produced a report that was obviously scoped not to find what it was looking for.

Nevertheless, a key part of the report pertained to FBI’s inability (or unwillingess) to respond to Leahy’s inquiries about what had started this investigation or to explain where the sources of information for their responses came from. (See PDF 56) The FBI, to this day, has apparently refused to agree to commit to be able to document where the information it responds to Congress comes from.

I will have more to say on this now, but I believe this is tantamount to retaining the ability to parallel construct answers for Congress. I’m quite confident that’s what happened here, and it seems that FBI has spent 6 years refusing to give up the ability to do that.

Update:

I didn’t read it when I originally reported in the NSL IG report, but it, like most IG reports, has a response from FBI, which in this case is quite detailed. The FBI claims that it had fulfilled most recommendations well before the report was released.

The response to the open exigent letter recommendation is at PDF 224. It’s not very compelling; it only promised to consider issuing a statement to say “hot number [redacted]” was prohibited.

The response to the 2014 report recommendations start on PDF 226. Of those, the FBI didn’t say they agreed with one part of one recommendations:

  • That the NSL subsystem generate reminders if an agent hasn’t verified return data for manual NSLs (which are sensitive)

In addition, with respect to the data requested with NSLs, FBI has taken out expansive language from manual models for NSLs (this includes an attachment the other discussion of which is redacted), but had not yet from the automated system.

As Recently as 2012, FBI Didn’t Think Your Phone Number Was Your Identity

Last week, Charlie Savage liberated additional disclosures on three IG reports he liberated last year: the 2007 NSL report, the 2009 Stellar Wind report, and a 2012 DOJ IG Section 702 report. With the NSL report, DOJ disclosed numbers that I believe were otherwise public or intuitable. With the Stellar Wind report, DOJ disclosed additional information on how the Department was dodging its obligation to notify defendants of the surveillance behind their cases; I hope to return to this issue.

By far the most important new disclosure, however, pertains to the FBI’s reporting on reports on US persons identified under Section 702 (see pages 17-18, highlighted by Savage here). Introducing the Executive Summary description of whether FBI was fulfilling reporting requirements, the report explained that the IG had adopted a fairly strict understanding of what constituted a US person dissemination.

Screen Shot 2016-01-11 at 2.08.00 PM

Although the key passage is redacted (and the report body on this topic is almost entirely redacted), it’s clear that the IG considered reports that identified a US person via something other than his or her name without sharing the content of communications constituted a report “with respect to” 702 acquisitions.

The FBI had been arguing about these definitions internally  and with DOJ’s IG since at least 2006, when it failed to comply with the legally mandated requirement for new minimization procedures to go with Section 215.  One way to understand an early version of the debate is whether, by retaining call records that don’t include a name but do include phone numbers that clearly belong to a specific person, the FBI was retaining US person identifying information. For obvious reasons — because if their minimization procedures treated a phone number as US person identifying information, then it would mean it couldn’t retain 5 years of phone records — FBI didn’t want to treat a person’s unique identifiers as person identifying information. The minimization procedures adopted in 2013 must mirror this problem given that FBI and NSA kept those records for another two years.

It appears the IG found the FBI’s reporting lacking in several ways: it did not include Section 702 related reports that identify a US person if that person (which I assume to mean that person’s identity) was identified via other means, and argued FBI should also count reports if the US person information in it was publicly available. In addition, the IG considered a metadata reference to also constitute a US person reference.

Screen Shot 2016-01-11 at 6.04.42 PM

This suggests the FBI was, until 2012, at least, not including the sharing of an email or even a report that identified the person tied to an email if it found that email, but not that person’s identity, via Section 702 in its reports to Congress. Imagine, for example, if FBI didn’t consider my emptywheel  email personally identifying of me, emptywheel, until such time as it publicly tied that email address to me. It would be bullshit, but we know that seems to be the kind of game FBI was and probably still is playing.

I’m particularly interested in this because of a speech Dianne Feinstein made in December 2012 — presumably after FBI had made whatever response they might make to this IG report — that named a number of people as if they had been IDed using Section 702. But when several of them demanded notice of Section 702 surveillance, none of them got it, and Feinstein and the Senate’s lawyer insisted they could not make anything of her insinuation that Section 702 had discovered them.

In other words, the two standards at issue here — the minimization procedures standard and the notice one — may be implicated in DOJ’s opaque notice guidelines. We don’t know whether it is or not, of course, but if it is, it would suggest that DOJ is limiting 702 notices based on what kinds of identifiers 702 produces.

1/13: Tweaked this post for clarity. In addition, note these letters from the Brennan Center which relate to this issue.